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Patna High Court

Vikash Kumar @ Vikash PaswanversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The Court held that anticipatory bail is maintainable and granted it to the petitioners.

Summary

Vikash Kumar and Anuj Kumar applied for anticipatory bail in a case where they were accused of assaulting a man with an axe, leading to his death. They argued that the FIR was lodged seven days after the incident, there were no eyewitnesses, no incriminating material was recovered, and the police investigation was flawed. The State opposed the bail, contending that a proclamation under Sections 82 and 83 of the CrPC had already been issued, making anticipatory bail untenable. The Court referred to the Supreme Court’s decision in Asha Dubey v. State of Madhya Pradesh, holding that a proclamation does not per se bar anticipatory bail and that the circumstances, nature of the offence, and lack of evidence must be considered. Finding no specific allegations or evidence against the petitioners, the Court granted anticipatory bail with conditions under Section 438(2) CrPC read with Section 482(2) B.N.S.S.

Issues considered

  • Whether anticipatory bail is maintainable when a proclamation under Sections 82 and 83 CrPC has been issued.
  • Whether the delay in filing the FIR and lack of eyewitnesses/incriminating material justify granting anticipatory bail.
  • Whether the petitioners can be released on bail under Section 438 CrPC in view of the allegations under the Bharatiya Nyaya Sanhita.

Legislation cited

Subjects

  • anticipatory bail
  • Section 82 CrPC
  • Section 438 CrPC
  • delay in FIR
  • lack of evidence
  • assault with deadly weapon
  • homicide
  • Bharatiya Nyaya Sanhita
  • Bharatiya Nagarik Suraksha Sanhita
  • criminal procedure

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.73862 of 2025

                   Arising Out of PS. Case No.-287 Year-2024 Thana- MADANPUR District- Aurangabad
                 ======================================================
           1.    Vikash Kumar @ Vikash Paswan S/o Kouleshwar Paswan @ Kauleshar
                 Paswan R/o Village- Chariya, P.S.- Madanpur, District- Aurangabad
           2.    Anuj Kumar @ Anuj Paswan @ Anoj Kumar S/o Kouleshwar Paswan @
                 Kouleshar Paswan R/o Village- Chariya, P.S.- Madanpur, District-
                 Aurangabad

                                                                                ... ... Petitioner/s
                                                      Versus
                 The State of Bihar

                                                        ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s   :        Mr. Bachan Jee Ojha, Adv.
                                                 Mr. Binod Kumar Pandey, Adv.
                 For the State          :        Mr. Aditya Narayan Singh1, APP
                 For the O.P. No. 2     :        Ms. Leelawati Kumari, Adv.
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE SOURENDRA PANDEY
                                       ORAL ORDER

3   18-02-2026                   Heard the learned counsel for the petitioners, the

                   learned counsel for the opposite party No. 2 as well as the

                   learned Additional Public Prosecutor for the State.

                                 2. The petitioners are apprehending their arrest in

                   connection with Madanpur P.S. 287 of 2024 registered for the

                   offence(s) under Section(s) 109 and 3(5) of the Bharatiya Nyaya

                   Sanhita, 2023 (B.N.S.) and Section 103 (1) of the B.N.S. was

                   later added on.

                                 3. The prosecution story in short is that while the

                   informant’s brother was sleeping in his courtyard, the accused
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          persons assaulted his brother with an axe causing injury to the

          right side of his head. He raised hulla upon which his wife and

          daughter-in-law reached there and saw the accused persons

          having axe in their hand and thereafter they fled away. Later on,

          he died in course of treatment.

                       4. The learned counsel for the petitioners submits that

          the petitioners are innocent and they have falsely been

          implicated in this case as the story is false and concocted. It has

          been submitted that there is no eye-witness to the occurrence

          and that no incriminating material has been recovered either

          from the possession or from the house of the petitioners. It has

          further been submitted that there is a delay of seven days in

          lodging of the FIR without any valid reason.

                       5. The learned counsel for the petitioners next submits

          that one Pratima Kumari had earlier given a fardbeyan on

          24.07.2024 at Om Fortis Hospital and had named one Shivman

          Bhuiyan and Ajay Bhuiyan to have assaulted her father-in-law

          with Kulhari and Fasuli respectively. However, the said

          fardbeyan mysteriously not formed the basis of the present case

          and as an after thought, a written report was submitted after

          seven days of the incident. It has been submitted that the

          allegation made upon the petitioners, of assaulting with Fasuli,
Patna High Court CR. MISC. No.73862 of 2025(3) dt.18-02-2026
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          in the said fardbeyan, does not find support from the post-

          mortem report. It has also been submitted that after fifteen days

          of the alleged occurrence, the victim died and, hence, Section

          103(1) BNS was added. It has next been submitted that the

          police, after investigation, submitted final form against the

          petitioners, however, the learned Court of Judicial Magistrate,

          without appreciating that there was nothing on record to suggest

          the involvement of the petitioners, has taken cognizance against

          them. It has lastly been submitted that the petitioners have no

          criminal antecedents.

                       6. The learned A.P.P. for the State and the learned

          counsel for the opposite party No. 2 have vehemently opposed

          the prayer for grant of anticipatory bail to the petitioners.

                       7. The learned counsel for the opposite party No. 2

          submits that the petitioners are named accused in the present

          case and there is allegation upon the petitioners, having been

          found to be fleeing from the place of occurrence. It has further

          been submitted that process under Sections 82 and 83 Cr.P.C.

          has already been effected against the petitioners and hence the

          anticipatory bail is not maintainable and thus the application be

          rejected.

                       8. To the preliminary objection raised by the learned
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          counsel for the opposite party No. 2 as regards to the

          maintainability of the anticipatory bail application, the judgment

          rendered by the Hon’ble Supreme Court in the case of Asha

          Dubey Vs. State of Madhya Pradesh, reported in 2024 SCC

          OnLine SC 5633 in paragraph nos. 8 and 9 has held as under:-

                                       “8. Coming to the consideration of
                          anticipatory bail, in the event of the declaration
                          under Section 82 of the Cr.P.C., it is not as if in all
                          cases that there will be a total embargo on
                          considering the application for the grant of
                          anticipatory bail.
                                       9. When the liberty of the appellant is
                          pitted against, this Court will have to see the
                          circumstances of the case, nature of the offence
                          and the background based on which such a
                          proclamation was issued. Suffice it is to state that it
                          is a fit case for grant of anticipatory bail, on the
                          condition that the appellant shall cooperate with
                          the further investigation. However, liberty is also
                          given to the respondents to seek cancellation of
                          bail that has been granted, in the event of a
                          violation of the conditions which are to be imposed
                          by the Trial Court or if there are any perceived
                          threats against the witnesses.”
                       9. Thus, the objections raised by the learned counsel

          for the O.P. No. 2 with regard to anticipatory bail being not

          maintainable once the process under Sections 82 and 83 CrPC
Patna High Court CR. MISC. No.73862 of 2025(3) dt.18-02-2026
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          has been issued, is not tenable in law, especially on account of

          the fact that the petitioners were not shying away from

          appearing before the court rather they were pursuing their

          statutory right of grant of anticipatory bail.

                       10. This court in the present case has found that

          initially one FIR was recorded at the hospital wherein Pratima

          Kumari had given her statement that one Shivman Bhuiyan and

          Ajay Bhuiyan have assaulted her father-in-law with Kulhari and

          Fasuli respectively, however, the same was never brought on

          record and later it was replaced by a written report. It is also a

          fact that the police had initially submitted a final form against

          the petitioners and thereafter, differing from the same, the

          learned court of judicial magistrate had taken cognizance.

                       11. Therefore, in view of the said background, I find

          that it is a fit case for grant of anticipatory bail especially for the

          fact that there is no specific allegations against the petitioners

          and barring suspicion there is no evidence against them, let the

          petitioners, above-named, be released on anticipatory bail, in the

          event of their arrest or surrender before the concerned

          Court/successor Court within a period of four weeks from today,

          on their furnishing bail bond in the sum of Rs. 10,000/- (Rupees

          Ten Thousand) each with two sureties of the like amount each to
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          the satisfaction of the concerned Court/successor Court where

          the case is pending in connection with Madanpur P.S. Case No.

          287 of 2024, subject to the conditions as laid down under

          Section 438(2) of the Code of Criminal Procedure, 1973 read

          with corresponding Section 482(2) of the Bharatiya Nagarik

          Suraksha Sanhita, 2023 (B.N.S.S.) as well as subject to the

          following conditions :

                                 (i) One of the bailors of the petitioners shall
                            be their close relative and the other shall be a
                            local resident.
                                 (ii) The petitioners shall remain physically
                            present before the concerned Court on each and
                            every date of the trial and shall cooperate in the
                            investigation.
                                 (iii) In case of absence for two consecutive
                            occasions or in violation of the terms of the bail,
                            the bail bond of the petitioners will be liable to be
                            cancelled by the concerned Court.
                                 (iv) If the petitioners, in future, is found to be
                            involved in similar nature of offence(s), the
                            prosecution shall be at liberty to move for
                            cancellation of their bail bond.
                                 (v) The concerned Court shall verify the
                            criminal antecedent of the petitioners and in case,
                            at any stage, it is found that he has concealed their
                            criminal antecedent, the Court concerned shall
                            take necessary steps for cancellation of their bail
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                                          bond. However, the acceptance of bail bond in
                                          terms of the above-mentioned order shall not be
                                          delayed for purpose of or in the name of
                                          verification.
                                    12. It is made clear that the observations, if any, made

                        in this order, shall be of no bearing during the trial.

                                     13. The application stands allowed.



                                                 (Sourendra Pandey, J)
Praveen-II/
aditya/-

U      T


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